Thursday, March 20, 2014

CO Pot Goes to Court

Colorado workers' compensation practitioners speculate in this morning's edition of WorkCompCentral news whether the state, being the first state in the nation to legalize the recreational use of marijuana, is going to handle pot in the workplace differently than some of the other jurisdictions that have faced similar issues.

While the case that the Colorado Supreme Court has accepted is about whether an employer can lawfully terminate a quadriplegic employee for his off-the-job medical-marijuana use, because a Colorado employer can reduce indemnity if an employee tests positive after a work place accident, there's some apprehension about what the court says will spill into work comp.

Brandon Coats, a former telephone customer service representative for DISH Network, brought a wrongful termination action against the Englewood-based direct-broadcast satellite service provider.

In Colorado an employer can administer a drug test upon the occasion of a work place accident and can immediately reduce the worker's indemnity benefits by 50% if the worker tests positive.

The worker can challenge the employer's action by arguing that the accident had no relationship to his drug use, which is the law in many states, and then the burden is on the employer to show that there was a relationship between the drug level detected and causation of the accident.

What is the "intoxication" level of the injured worker who tests positive for marijuana has not been settled and there are no standards yet. Marijuana has a very long latency period due to the fact that it binds with fat cells, as opposed to alcohol, which is water soluble, so the fact of marijuana in the blood stream is evident long after intoxication.

Some employers have a drug-free workplace policy and the law in Colorado recognizes such policy as a condition of employment.

Thus, if a Colorado worker is fired for-cause, i.e. violating the drug-free workplace policy, the worker is not entitled to temporary total disability benefits because TTD is intended to replace the worker's wage loss if an injury is the cause of the loss, and if a worker was fired for cause, then the cause of the loss was not the injury.

According to the National Institute on Drug Abuse, marijuana smokers are more likely than non-marijuana smokers to file workers' compensation claims. For example, a study among postal workers found that employees who tested positive for marijuana on a pre-employment urine drug test had 55% more industrial accidents, 85% more injuries, and a 75% increase in absenteeism compared with those who tested negative for marijuana use.

Coats is a registered medical marijuana user. He is paralyzed in over 80% of his body because of injuries from a car accident when he was 16. He claims to use marijuana to control the involuntary muscle spasms that his prescription medicine was no longer treating effectively.

According to reports, Coats was a good employee who got positive reviews from his supervisors for the three years he worked at DISH.

In May 2010, DISH asked Coats to undergo a random drug test. Coats told the test administrator that he was a medical marijuana user, but that didn't stop the company from firing him when the test came back positive for THC, the psychoactive ingredient in marijuana.

Volz ruled that because marijuana was still unlawful under federal law, it could not fit the definition of a "lawful activity" in a state statute.

A divided court of appeal upheld the trial level decision.

His attorney, Denver-based Michael D. Evans is arguing to the state Supreme Court that if using medical marijuana is a lawful activity under Colorado law, then employers should not be allowed to fire a worker for using marijuana outside of work.

A number of other courts have tackled the issue of drug testing in the work place brought by plaintiffs under different theories. The courts have mostly ruled that just because one has the state right to use marijuana for medicinal purposes does not mean that the employee can sue the employer for discrimination or take any other action against the employer.

If the Colorado Supreme Court wants to stay out of workers' compensation issues, then it will issue a very narrow ruling applicable only to whether this constituted a wrongful termination.

But high court rulings typically are full of explanatory theory - what we lawyers call, "dictum." Often it is the dictum in such cases that give rise to cases that involve different facts and thus new law, or refinement of previously stated law.

Whether the court wanders into workers' compensation issues is unlikely, but the case has the potential to radically redefine drug policy in Colorado, and thus, its application to workers' compensation.

About Me

After practicing workers' compensation law for nearly 18 years, I founded and grew WorkCompCentral into the most respected news and education service in the workers' compensation industry. I am a regular public speaker on workers' compensation to industry trade shows, educational seminars, radio and television, and have been quoted or cited in general media publications such as Fortune Magazine, the LA Times and Wall Street Journal. I have been published in leading industry journals and scholarly publications on topics ranging from the underlying financial issues that led to an historic makeover of the California workers' compensation system, to the new paradigm in work injury protection and national trends in the workers' compensation industry.